SECRECY AT ISSUE IN SUITS OPPOSING DOMESTIC SPYING

By ADAM LIPTAK

Published: January 26, 2007

The Bush administration has employed extraordinary secrecy in defending the National Security Agency's highly classified domestic surveillance program from civil lawsuits. Plaintiffs and judges' clerks cannot see its secret filings. Judges have to make appointments to review them and are not allowed to keep copies.

Judges have even been instructed to use computers provided by the Justice Department to compose their decisions.

But now the procedures have started to meet resistance. At a private meeting with the lawyers in one of the cases this month, the judges who will hear the first appeal next week expressed uneasiness about the procedures, said a lawyer who attended, Ann Beeson of the American Civil Liberties Union.

Lawyers suing the government and some legal scholars say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege.

Justice Department officials say the circumstances of the cases, involving a highly classified program, require extraordinary measures. The officials say they have used similar procedures in other cases involving classified materials.

In ordinary civil suits, the parties' submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.

At the meeting this month, judges on the United States Court of Appeals for the Sixth Circuit asked how the procedures might affect the integrity of the files and the appellate records.

In response, Joan B. Kennedy, a Justice Department official, submitted, in one of the department's unclassified filings, a detailed seven-page sworn statement last Friday defending the practices.

''The documents reviewed by the court have not been altered and will not be altered,'' Ms. Kennedy wrote, and they ''will be preserved securely as part of the record of this case.''

Some cases challenging the program, which monitored international communications of people in the United States without court approval, have also involved atypical maneuvering. Soon after one suit challenging the program was filed last year in Oregon, Justice Department lawyers threatened to seize an exhibit from the court file.

This month, in the same case, the department sought to inspect and delete files from the computers on which lawyers for the plaintiffs had prepared their legal filings.

The tactics, said a lawyer in the Oregon case, Jon B. Eisenberg, prompted him to conduct unusual research.

''Sometime during all of this,'' Mr. Eisenberg said, ''I went on Amazon and ordered a copy of Kafka's 'The Trial,' because I needed a refresher course in bizarre legal procedures.''

A federal district judge in the case, Garr M. King, invoked another book after a government lawyer refused to disclose whether he had a certain security clearance, saying information about the clearance was itself classified.

Questions about the secret filings may figure in the first appellate argument in the challenges, before the Sixth Circuit, in Cincinnati, on Wednesday. The three judges who will hear the appeal met with lawyers for the Justice Department and the American Civil Liberties Union on Jan. 8 in a judge's chambers in Memphis.

''The court raised questions about the procedures the government had used to file classified submissions in the case and the propriety and integrity of those procedures,'' said Ms. Beeson, associate legal director of the A.C.L.U., which represents the plaintiffs in the appeal.

''They were also concerned about the independence of the judiciary,'' given that ''the Justice Department retains custody and total control over the court filings.'' Ms. Beeson said.

Nancy S. Marder, a law professor at the Chicago-Kent College of Law and an authority on secrecy in litigation, said the tactics were really extreme and deeply, deeply troubling.

''These are the basics that we take for granted in our court system,'' Professor Marder said. ''You have two parties. You exchange documents. The documents you've seen don't disappear.''

A spokesman for the Justice Department, Dean Boyd, said employees involved in storing the classified documents were independent of the litigators and provided ''neutral assistance'' to courts in handling sensitive information. The documents, Mr. Boyd said, are ''stored securely and without alteration.''

The appellate argument in Cincinnati will almost certainly also concern the effects of the administration announcement last week that it would submit the program to a secret court, ending its eavesdropping without warrants.

In a brief filed on Thursday, the government said the move made the case against the program moot.

Ms. Beeson of the A.C.L.U. said the government was wrong.

At least one case, the one in Oregon, is probably not moot. It goes beyond the other cases in seeking damages from the government, because the plaintiffs say they have seen proof that they were wiretapped without a warrant.